News: Court restricts publication of its reasons for ending a criminal prosecution

Yesterday, the High Court allowed an appeal by four criminal defendants against a unanimous judgment of the Victorian Court of Appeal and set aside two orders made by that court. According to the judgment summary of the High Court ruling, a majority of the Court ‘ordered that prosecutions of the appellants for offences against the Criminal Code (Cth) and the Crimes Act 1958 (Vic) be permanently stayed.’ This means that the prosecution of the four defendants, whoever they are, for a number of federal and state offences, whatever they are, is over, for ever. The summary explains that all seven High Court justices found that one of Australia’s peak crime investigating bodies, the Australian Crime Commission, illegally allowed its extraordinary coercive powers to be used by another peak investigative body, the Australian Federal Police, to overcome the four defendants’ legitimate refusal to explain the possibly illegal activities of a (pseudonymous) company, XYZ Limited. According to the summary, a majority of the seven judges held that ‘in the circumstances of the case, to allow the prosecutions to proceed would bring the administration of justice into disrepute.’

This is an extraordinary ruling. The Court’s findings, especially if it turns out that the allleged crimes or criminals are high profile, would ordinarily be big news, both for the legal community and to the wider public. However, for now, suppression orders made somewhere – it’s a Victorian case – are preventing not only the naming of the defendants but also the release of the High Court’s reasons for judgment. As Kiefel CJ explained when yesterday’s reasons were (meant to be) handed down:

The Court has been advised by the parties that there remain in place suppression orders respecting certain of the material which may appear in the reasons for judgment of the Court. To prevent prejudice to the proper administration of justice the Court makes orders to enable identification by the parties of material which may be the subject of ongoing suppression orders before the full, unredacted reasons of the Court are made publicly available.

While it is understandable that the Court would not wish to breach existing suppression orders, it is not immediately clear why it was unable to ensure in advance that its reasons for judgment were not in breach of any suppression orders. Alternatively, it is surprising that the parties could not be consulted in advance to clarify any uncertainty about what could or could not be said consistently with those orders. The Chief Justice’s orders nominate next Wednesday as the date for sorting out these issues, but it is possible that the date could be changed by further orders, and she also gave ‘liberty to apply’ for applications to continue to prohibit publication of parts of the Court’s reasons. The orders do not specify what will happen if the Court later determines that parts of its reasons can not be published.

Chief Justice Kiefel’s introductory remarks concluded: “In the interim, reasons of the Court in a redacted form are to be made available to the public.” However, surprisingly, the precise terms of her order give effect to this in a very narrow way:

Subject to Orders 4 and 5, the reasons for judgment of the Court be made available from the High Court Registryonly in their redacted form and by request, subject to payment of the prescribed fee.

This explains why the redacted reasons for judgment are not, at the moment, available on online repositories such as Austlii, Jade and the High Court’s own website. According to the Court’s Melbourne registry, anyone who wants to see the redacted judgment will need to attend one of the registries of the High Court in person and pay a fee of $60. Again, it is not clear to me why the redacted judgment could not simply be placed on the regular online repositories or simply posted on the Court’s own webpage, perhaps in a pdf form. After all, the Court’s own suppression order only applies to the ‘full, unredacted reasons for judgment of the Court’ and it seems clear that the redacted version does not contain anything that breaches any other court’s suppression orders.

About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

It appears to be item 203 of Sch 1 (Fees) to the High Court of Australia (Fees) Regulations, which imposes the charge of $60 for obtaining — note — a copy — of a judgment (not merely access). I can’t find anything in any rules or regulations about access to judgments as such — the imposition of the fee is the only expression provision. Perhaps uploading and publishing the judgment on the web would be infringing someone’s copyright?

Well, it really leads into a fascinating but puzzling area. Order 3 of the orders pronounced by the Chief Justice on 8 November — reasons to made available only from the court’s registry offices in redacted form on payment of prescribed fee — could perhaps be understood to show an intention that these are not to be given a wide circulation, in effect. But that is unlikely — the court just meant to distinguish between the unredacted copies there and then in open court being handed down to the parties — and the redacted copies to be made available later out of the registry. And surely the order cannot mean that short of actually uploading and publishing on the web the redacted copy a member of the public (say a legal scholar at Melbourne Law School) having drawn upon his no doubt limited resources to buy the redacted judgments could not publish a detailed report or commentary on the reasons, in their redacted form?

I can’t imagine such a thing as a redacted document — this means big sections are blacked out, correct?? — setting out part of the reasons of the court being published on AustLII, let’s say. True enough: “It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers”: Hogan v Hinch (2011) 243 CLR 506, [21]…but High Court judgments with large bits blacked out in the manner of the FOI release of documents by a government agency with a dubious enthusiasm for disclosure is more than many of us will be able to stomach.

In relation to this: “While it is understandable that the Court would not wish to breach existing suppression orders, it is not immediately clear why it was unable to ensure in advance that its reasons for judgment were not in breach of any suppression orders. Alternatively, it is surprising that the parties could not be consulted in advance to clarify any uncertainty about what could or could not be said consistently with those orders.”

One reason that I can think of is that the orders of the Court are not binding until made. Letting the parties know the result of the case before the orders would made might allow the losing party to evade the judgment: in this case, for instance, the AFP might have voluntarily discontinued the prosecution, so that there would no longer be a prosecution to permanently stay, thus requiring the Court to tear up its judgment. Surely the only way around that is to make the *dispositive* orders unconditionally, but give the parties an opportunity to deal with redaction issues in the judgment? In any event, is it really that bad in the scheme of things to have to wait one extra week for the reasons and the free online version?

True, but that assumes (a) that the prosecution would or could evade the judgment in this way; and (b) that the Court couldn’t have isolated the particular passages of concern from the rest of the judgment. (Also, the transcript of argument made it pretty clear that the prosecution were likely to lose, anyway.) Indeed, the UKSC routinely makes its reasons for judgment available to the parties a few days in advance of the publishing its orders and reasons, in part to allow these sorts of issues to be settled.

Yes, you can always say ‘who cares about one week?’ Indeed, I’m pretty sure that’s the Court’s thinking (and it’s certainly how Victorian judges always think, but substitute ‘a year or two’ for a ‘week.’) But it assumes that one week (and it’s not clear why the parties need that long anyway) is irrelevant to the public, the media, lawyers, academics etc, and that the Court is a good judge of that (e.g. in a case like this, that, in theory at least, could be highly politically controversial.)

(I realise that your point is not directed to my main gripe, which is the pointless decision to make the redacted version only available for a fee.)

Re Nader’s remark above: There’s a bit of interesting case law under s 24(2) of the Canadian Charter which provides that illegally obtained evidence can be excluded if its admission would bring the administration of justice into disrepute. Following R v Collins (1987) which applied the section pretty strictly, it was estimated that evidence had been excluded in 45% of cases. Then the courts started to give more weight to Nader’s argument that excluding the evidence could itself bring the admin of justice into disrepute, culminating in R v Grant 2009 SCC 32, where a conviction was upheld even though the police behaviour was pretty oppressive (and probably discriminatory, as the defendant was young and black). Canadian lawyers were of course divided on it – see http://www.slaw.ca/2009/07/17/scc-decision-in-r-v-grant-do-the-ends-justify-the-means/

In this case I must say the conduct of the ACC and AFP was pretty egregious. They thoroughly deserved a slap-down. It’s a pity that the only way of giving them a slap-down that they’ll pay any attention to is to allow some possibly criminal behaviour to go unpunished.

Oh, and I notice from the HCA summary that the decision was by majority, though they were – as you’d expect – unanimous as to the ACC’s conduct being unlawful. Has anyone paid their $60 so that you can tell us who the dissenter(s) was/were? That much can clearly be disclosed without breaching the suppression order!

In the event the judges do decide that certain facts or information must remain confidential, then they will of necessity re-cast their judgments before sending these out for publication in AustLII or let alone the authorised reports — the CLR.

For the very good reason that redacted judgments will look F [REDACTED] ING RIDICULOUS.

It appears to be a balancing act between two public interests, on one hand are the public expectation and the aim of criminal law to sanction illegal conduct, on the other is to uphold the integrity of the criminal law regime by ensuring law enforcement agencies are not acting unlawfully (at least not inconsistent with the legislative intent of the Parliament) in the way they discharge their statutory powers.

In this case, the HC weighted the latter over the former. This is a significant decision that demonstrates even an agency is acting consistently with the text of the law, can still be acting unlawfully if the manner of the exercise of power has deviated from the legislative intent of the Parliament to the extent that amounts to an abuse of process.